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CASE NO. 3:08cv241/LAC/EMT 




Comes now Plaintiff Justin Gatlin who, pursuant to Federal Rule of Civil Procedure 
64(b) and N.D. Fla. Loc. R.7.1 (A), hereby submits this Memorandum of Law and Facts in 
Support of Plaintiffs Motion for Temporary Restraining Order and/or Preliminary 
Injunction. In furtherance of said Motion, Plaintiff says as follows: 


This is a case brought under Title III of the Americans with Disabilities Act 
("ADA") and Section 794 of the Rehabilitation Act of 1973 ("RA"). The Plaintiff claims 
that the Defendants' failure to grant him a retro-active exemption for a 2001 doping 
violation relating to prescription medication used to treat his disability is a violation of the 
ADA and the RA. The current sanction makes the Plaintiff, an Olympic athlete, ineligible 
for competition until 2010. If, however, this Court ordered a retro-active exemption to the 
alleged discriminatory policies, the Plaintiff would be eligible for competition immediately, 
given the credit for the time already forfeited. This would permit his participation in the 
Olympic Track and Field Qualifications set for June 27, 2008 in Eugene, Oregon. 


The athletic world is governed and organized by 4 general categories of entities: 
international federations, Olympic committees, national governing bodies and anti-doping 
agencies. The International Association of Athletics Federations ("IAAF") is a 
conglomerate federation made up of the worlds Olympic committees and national governing 
bodies for each discipline. The United States Olympic Committee ("USOC") is a federally 
chartered corporation. The USOC is charged with the responsibility of approving Olympic 
and Para-Olympic athletes for competition. The Untied States Track and Field, Inc. 
("USATF") is the national governing body for the United States track and field athletes. 
The United States Anti-Doping Agency ("USADA") was formed in 2000 and is a private 
corporation based in Colorado. USADA is the anti-doping arm for the USATF, USOC and 
IAAF. For American athletes, USADA represents the USATF, USOC and the IAAF in all 

doping situations. IAAF rules are required to be implemented by the USOC and the 


Anti-Doping Agency 

In 1999, the World Anti-Doping Agency ("WADA") was formed. The matter at issue 

involves events happenings between 2001-2006. The IAAF Code sets forth the following 

for sanctions as of 2001 in relation to doping offenses: 

If any person commits an anti-doping rule violation under these Anti-Doping 
Rules, he shall be subject to the following sanctions: 
(a) for a violation under Rules 32.2(a), (b) or (f) (prohibited substances and 
prohibited methods), except where the prohibited substance is a specified 
substance in a case under Rule 40.5 below, or Rule 32.2(i) (competing whilst 
suspended or ineligible): 

(i) first violation: for a minimum period of two years ' ineligibility 

(ii) second violation: ineligibility for life. " 

IAAF Rule 40.1(a) (ii) (2006-2007) 
In 2003, the WADA authored and adopted its own model anti-doping code. It has become 
the suggested code for all international federations. The WADA code provides for a 
consideration of fault in the determining liability. More importantly, the WADA code 
expressly prohibits the use of a first "no fault" violation as an enhancement for later 

10.5.1 No Fault or Negligence 

. . . In the event this Article is applied and the period of 
Ineligibility otherwise applicable is eliminated, the anti-doping 
rule violation shall not be considered a violation for the Limited 
purpose of determining the period of Ineligibility for multiple 
violations under Article 10.2, 10.3 and 10.6. 

WADA RULE 10.5.1 

The IAAF has not yet adopted the WADA code. 

Anti-Doping Policy 

These Defendants publish a list of "prohibited substances" that changes from year to 
year. This list includes not only substances but processes like gene and blood doping. The 
underlying purpose of all these policies is to insure an equal "playing field". 

The "prohibited list" is currendy eleven pages in length and lists the chemical name, 
including common brand names, of each and every substance that is considered 
performance enhancing. Many times substances that are legal and medically necessary may 
also be on this list. For instance, insulin has just recendy been added to the list of prohibited 
substances and asthma medications have been on this list for several years. Until recendy, 
"brand names" were not included on the list. In 2001, no brand names were referenced for 
ADD medications. 

In order to balance the athletes need to treat themselves with these medically 
necessary substances and the goal of making certain that play is fair, the Defendants have 
provided a Therapeutic Use Exemption or "TUE". A TUE is an exemption that must be 
applied for in writing and typically requires 21 days advance filing. It requires that medical 
records and consultations be performed to insure that only legitimate medically necessary 
substances are permitted. 

Plaintiff was diagnosed with ADD at the age of 9. He continues to be under the care 
of a physician for this condition. (See Affidavit of Robin E. Barnett, M.D. attached as 
Exhibit A). Plaintiff struggled academically in elementary school and later at Woodham 
High School. He did graduate from high school with several track scholarship offers from 
several schools. (See Affidavit of Justin Gatlin attached as Exhibit B). Justin accepted an 
athletic scholarship from the University of Tennessee. 

Prior to his freshman year at the University of Tennessee, Dr. Barnett warned Justin 
that balancing his academics and intercollegiate athletics at Tennessee was going to be a 
challenge especially with his disability. (See Exhibit B). Justin enrolled in Tennessee's Special 
Education Program that provided specific accommodations for his ADD. These 
accommodations included more time with tutors than typically allowed by the NCAA 
policies and more time to take his exams. (See Exhibit B) Despite these accommodations, 
Justin's academics suffered. He had particular trouble with his afternoon classes. These 
were more difficult because Justin would always skip his afternoon dose of Adderall®. He 
skipped this dose since he did not like the lethargic side effect it gave him by the time of 
track practice. (See Exhibit B) 

Outside of the classroom, Justin was a huge success. On the track his that first year 
at Tennessee, he helped them win both the SEC and National Championships. (See Exhibit 
B). The academic struggles though continued and Justin received a grade of "no credit" in 
two courses. This required him to attend two summer classes between his freshman and 
sophomore years. (See Exhibit B). These classes were required core classes. Failing either 
meant that he would loose his NCAA eligibility and scholarship. (See Exhibit B) Justin was 
determined to pass these classes and to accomplish this he was fully compliant with his 
Adderall® dosages. (See Exhibit B). While Justin was studying very hard in the summer 
classes there was one track meet that he was asked to compete, The USATF Junior 
Nationals. This meet was commonly referred to as the "Junior Nationals" and it is an IAAF 
sanction meet. The meet was scheduled for June 16 and 17, 2001. This was a weekend that 
coincidental^ fell just 3 days following an exam in one of his summer classes. To make 
certain that he did well on the exam he took his Adderall® as prescribed. Following the 
test, he stopped his medicine so that he could insure that it was out of his system by the 

weekend. (See Exhibit B). This had been the way that Justin had managed all of his 
freshman NCAA events and he had no indication from the NCAA that any of his, in season, 
drug tests were positive for any substance. In fact, the 2001 USATF manual endorsed this 
practice specifically directing ADD athletes to stop the medication days before competition. 
The USADA, the NCAA and the University of Tennessee also expressly endorsed this same 
method of compliance with ADD medications. (See Exhibits B and Affidavit of Coach Vince 
Anderson attached as Exhibit C) 

On June 16 and 17, 2001, Mr. Gatlin was drug tested by USADA at the USATF 
Junior Nationals. About two months later, his urine samples were declared positive by the 
IOC-accredited laboratory at the University of California at Los Angeles for the stimulant 
amphetamine. Amphetamine is a substance prohibited during competition under the IAAF 
rules which were applicable to the USATF competition. The test results showed 20 
nanograms of the drug per milliliter of urine on the first day of testing and less the second 
day. These amounts were consistent with Justin stopping his medication days before the 
competition as he had indicated. (See 2002 American Arbitration Association Decision 
attached as Exhibit D). 

At that time USADA, NCAA, USATF and the University of Tennessee had no 
specific exemption requirement for Adderall and all of these entities recommended that the 
medicine be stopped before the competition. (See Exhibits B & C) 

At the time of Justin's 2001 violation for taking his Attention Deficit Disorder 
("ADD") medicine, the "prohibited list" did not contain any reference to ADD, Adderall® 
or Ritalin®. The list mentioned only amphetamine. USADA, who had just been formed in 
October of 2000, also did not identify any need for an athlete taking medicines for ADD to 
apply for a "TUE". 

In May 2005, USADA started using a form that specifically alerted ADD athletes to 
the need for them to apply for a "TUE" so that their medically necessary stimulant would 
not render them in violation of anti-doping policies. (See 2005 United States Anti-Doping 
Agency Therapeutic Use Exemption Form for use with ADD and AD/HD Medications 
attached as Exhibit E) At the time of Justin's 2001 Adderall® violation his track coach at 
the University of Tennessee was not aware of a requirement that a "TUE" be completed for 
Adderall®. (See Exhibit C) Justin's treating physician, Dr. Barnett, even tried to write 
USADA to ask whether Adderall could cause a result in a drug test and he never received 
any response. (See Exhibit A). 

A properly filed and accepted TUE relieved the athlete from any and all adverse 
consequences of a positive drug test. However, the failure to file a TUE even with the 
proper medical evidence, if submitted after the positive test, resulted in an automatic 
violation and a 2 year suspension. Most relevant for this matter, this type of violation was 
also considered an athletes first violation for purposes of an enhancement of sanctions with 
future violations. 

The USADA Protocol for Olympic Movement Testing ("Protocol") was the 
applicable guideline for this doping offense as are the IAAF definitions of doping, 
prohibited substances and applicable sanctions. This protocol required that the USADA 
Review Board ("Board") evaluate this offense and recommend, or not recommend, further 
prosecution (See United States Anti- Doping Agency's Protocol for Olympic Movement 
Testing attached as Exhibit F). The Board collected all of the relevant medical records and 
other medical evidence. This Board confirmed that Justin had been a long time sufferer of 
ADD and was taking Adderall® under physician supervision and direction. The Board 


chose, however, to continue with the prosecution of Mr. Gatlin despite this knowledge and 
despite Mr. Gatlin's request to accommodation. 

Mr. Gatlin was instructed that the only way that he could receive consideration for 
his innocent mistake was to admit to a doping offense and then request "early 
reinstatement." (See Exhibit B) So, relying on this instruction, Justin requested early 
reinstatement from the IAAF. The IAAF refused to consider this request until Justin had 
actually received a sanction. So, Justin was brought before an AAA panel and USADA 
made its case against him for violating their doping policy. (See Exhibit B) 

Under the IAAF regulations, a doping violation takes place when a prohibited 
substance (in this case amphetamine) is found within an athlete's bodily fluids, unless a prior 
medical exemption was given by the IAAF for the use of the substance. 

This AAA panel explicidy made no finding of fault but retained jurisdiction to hear 
the merits of the case if Justin was not reinstated by the IAAF. (See Exhibit D). The Panel 
concluded, in part, the following: 

This Panel would characterise Mr. Gatlin 's inadvertent violation of 
the IAAF's rules based on uncontested facts as, at most, a 
'technical' or 'paperwork 1 violation. 
(Emphasis Added) (Exhibit D) 

The IAAF granted early reinstatement after Justin had served a year of suspension. 
(See Exhibit B). It is undisputed that based upon the medical experts' opinion in this case, it 
is not unreasonable to assume that if requested the exemption likely would have been 
granted. (See Exhibit D) 

At that time, USADA, consistent with the IAAF rules in effect in 2001, imposed a 
two year penalty for this Adderall® offense without regard to any mitigating circumstances. 
In 2001, there was no provision in the IAAF rules that allowed consideration given to "fault 
or "no fault". (See Exhibit D). However, a new set of WAD A rules were passed in 2006 


that does now allow the consideration of fault in determining liability. Perhaps most 
importantly, the current sets of rules provide that a finding of "no fault" prevents that 
violation from being used against the athlete for purposes of enhancing a future 
sanction. (See Exhibit D and "IAAF Rule 10.5.1" contained within 2007 American 
Arbitration Decision attached as Exhibit G) 

Between 2001 and 2006, Justin won three Olympic medals and won the 2005 World 
Championships. He was drug tested over ten separate times and none of these tests revealed 
the presence of any prohibited substance. In 2006, while attending a tune up, pre-season 
race, USADA tested Justin and later reported finding traces of synthetic steroids. (See 
Exhibit B) USADA has prosecuted and sanctioned Justin taking the position that this is his 
second doping offense. The 2007 AAA panel considered these issues and all mitigating 
factors and imposed a 4 year ban. (See 2007 American Arbitration Association Award 
attached as Exhibit G). This reduction from 8 years was based upon 2001 issues and the 
IAAF provision allowed for a reduction for "exceptional circumstances" and Justin's 
cooperation with USADA on unrelated issues. (See Exhibit F). 

At the 2001 USADA Review Board, the 2007 AAA hearing and again at the 2008 
CAS hearing Justin requested accommodation and modification for his 2001 Adderall® 
violation. These requests have all been denied. (See 2008 Court for the Arbitration for Sport 
Decision attached as Exhibit H) 

The Olympic trials are being operated, at least in part, by Defendants USOC and 
USATF. (See Affidavit of Renaldo Nehemiah attached as Exhibit I). It is clear that the 
USOC and USATF are sponsoring this event and the USATF is controlling the schedule of 
events. The USOC has conducted many of its Olympic Trials in other stadiums across the 

country. . The USOC, USADA and USATF operate events at public stadiums on a regular 
basis. (See Exhibit I). 


Before injunctive relief may be granted the moving party must show that: "(1) it has 
a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless 
the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the 
proposed injunction may cause the opposing party; and (4) if issued, the injunction would 
not be adverse to the public interest." Siegelv. LePore, 234 F.3d 1163, 1176 (11 th Cir. 2000). 

(1) Substantial Likelihood of Success on the Merits 

The level of proof required to meet this burden has been described as the type of 

proof that would withstand scrutiny under Fed. R. Civ. P. 12(b) 6. Klay v. United Heatlhgroup, 

Inc., 376 F. 3d 1092, 1097 (1 1 th Cir. 2000). In order for Justin to prevail on his ADA and 

RA claims he has the burden of establishing the following elements: (a) that he has a 

disability within the meaning of the ADA and the RA; (b) that Defendants are subject to the 

provisions of the ADA and the RA and (c) that allowing an exemption/waiver from any 

adverse consequence suffered as a result of the Defendants policies is a reasonable 

accommodation and does not fundamentally alter the sport of track and field. 

(a) Justin's A.D.D. is a disability recognized by both the ADA and the RA. 

The ADA provides the following definition of "disability": 

-a physical or mental impairment that substantially limits one or more of the 

major life activities of such individual, 

-a record of such an impairment; or 

-being regarded as having such an impairment. 

42 U.S.C. § 12102(2) (1994). 

Once the plaintiff presents sufficient evidence to establish a physical or mental 

impairment, courts evaluate the degree to which the disability limits a major life activity. 


"The phrase major life activities means functions such as caring for one's self, performing 
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. 
§ 36.104 (2000). The Supreme Court has pointed out that ADA's fundamental requirement 
that only impairments causing substantial limitations in an individuals' ability to perform 
major life activities constitute disabilities. Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 565, 
119 S. Ct. 2162, 144 L.Ed.2d 518 (1999). Determining whether a person is disabled under 
the ADA requires an "individualized inquiry" made on a case by case basis. Thornton v. 
McClatchy Newspapers, Inc., 261 F.3d 789, 794 (9 th Cir. 2001). The Ninth Circuit has 
recognized that a learning disability can constitute a disability under the ADA. Zukle v. 
Regents of Univ. of California, 166 F. 3d 1041, 1046 (9 th Cir. 1999). Other courts, after 
conducting their own individualized inquiry, have also held that certain levels of mental 
deficiencies affects the ability of a person to learn or work. See, e.g., Whitney v. Greenburg, 
Rosenblatt, Kull & Bitsoli, P.C., 258 F. 3d 30 (1 st Cir. 2001) (dementia that did not substantially 
limit plaintiffs ability to learn or work did not constitute "disability" within the meaning of 
the ADA); Bowen v. Income Producing Mgmt. of Oklahoma, Inc., 202 F.3d 1282, 1287 
(10 th Cir. 2000) (Brain injured plaintiff who, in spite of injury, had greater skills and abilities 
than average person, not considered "disabled" under ADA); Bercopitch v. Baldwin Sch., Inc., 
133 F.3d 141, 155 (1 st Cir.1998) (attention deficit hyperactivity disorder that substantially 
affected learning did constitute disability under ADA). 

In 1998, the Federal District Court in Oregon in Bingham v. Oregon School Activities 
Association was confronted with an athlete suffering from ADD who was requesting a 
preliminary injunction based upon a Title III ADA claim. Mr. Bingham was a high school 
football player who, due to his disability, was forced to repeat the tenth grade. In his senior 
year, he tried out for the football team only to be informed that the school district had an 


eight semester rule that prohibited any student from being eligible to play any more than 
eight semesters. Mr. Bingham filed this suit after his waiver of this rule was denied by the 
school board. The District Court granted the motion for temporary restraining order and 
preliminary injunction holding that ADD was a disability in light of the facts of that case and 
the ADA. That court also found that the plaintiff satisfied all of the elements of a 
preliminary injunction. 

In the case at bar, Justin has, since the age of 9, been diagnosed as and treated for 
Attention Deficit Disorder. Plaintiff had been under the continuous care of a physician for 
this disability. Justin has been prescribed both Ritalin and, more recently, Adderall® to 
combat the harmful effects of ADD. Despite these medications, Justin's ability to learn was 
significantly affected. While at the University of Tennessee, the school placed him in a 
special education program. This program provided accommodations and modifications for 
person's suffering from ADD. These accommodations included more time with tutors than 
usually allowed by NCAA athletic policies and more time to complete exams. 

Despite these accommodations, Justin was not able to pass the minimum required 
course load for either his freshman or sophomore years at Tennessee. For example, Justin 
was forced to withdraw from a Health and Wellness class and also received an "NC" in 
English Composition in his first semester. His second semester freshman year was worse. 
Justin received another "NC" for writing workshop and a "D" in drawing class which 
happened to be his favorite class. Following his positive drug test in 2001, Justin's grades 
sharply fell since he stopped his medicines altogether fearing that any trace would show up 
in his drug tests. 


Dr. Barnett has testified that throughout Justin's academic life there was a noticeable 
difference in academic performance while medicated. (See Exhibit A). Dr. Barnett has the 
opinion that Justin has a severe case of ADD that affects his ability to learn. 

A review of Justin's medical records from Dr. Barnett's treatment illustrates the 
effect this disability had on Justin's learning. There are many instances in these records 
where there is a discussion about ADD and its effect on Justin's academics. These items 
include mental status testing performed by Dr. Barnett in 1996. This test resulted with 
Justin meeting the text book definition of ADD and having "marked academic difficulties." 
(See Medical Records Attached to Exhibit A specifically a March 27, 1996 Psychiatric 
Evaluation). These records provide perhaps the most reliable indicia of the effects ADD has 
had on Justin's ability to learn. An effect that can best be characterized as substantial. 
Hence, Justin's ADD is a disability that affects a "major life activity". Justin clearly has 
records documenting this disability and he has been regarded as suffering from ADD since 
the age of 9. Hence, Justin's ADD is a disability under the ADA. 

(b) Defendants are subject to the provisions of the ADA 

Title III of the ADA lists the entities regulated under the statute as "places of 
accommodation", explaining that a private entity is covered if its operations "affect 
commerce" and it falls within one or the twelve enumerated categories. 42 U.S.C. § 
12181(7)A-L. These categories of covered entities include, inter alia, 

(c) ... Stadium or other place of exhibition or entertainment. 

(i) a park, zoo, amusement park, or other place of recreation; 

(1) a gymnasium, health spa, bowling alley, golf course, or other place 

of exercise or recreation. 

ADA 42 USC 12182(7) (Emphasis Added) 

"A reading of the plain and unambiguous statutory language reveals that the 
definition of discrimination provided in Title III covers both tangible barriers, that is 


physical and architectural barriers and intangible barriers, such as eligibility requirements and 
screening rules or discriminatory policies and procedures that restrict a disabled person's 
ability to enjoy the defendant entity's goods, services and privileges." Rendon p. Valeycrest 
inductions, Inc., 294 F.3d 1279 (11 th Or. 2002). 

In Rendon, the plaintiffs brought a Tide III ADA claim against a production company 
and ABC. The plaintiffs argued the telephone screening process for ABC's "Who Wants to 
be a Millionaire?" was discriminatory. The process required would be contestants to answer 
various questions by pressing their number buttons on their phone. Some of the plaintiffs 
were hearing impaired and others had a disability that prevented them from completing the 
phone procedures. ABC argued that the ADA did not apply to it since the phone selection 
process did not involve a "place of accommodation." The Eleventh Circuit rejected this 
argument pointing out that the telephone interview was a screening process that could 
eventually end in a contestant visiting the "studio". The Court reasoned that a studio is akin 
to one of the twelve designations contained in § 12181 (7)C (covering theatres and other 
places of entertainment). The crux of the case to the Eleventh Circuit was the nexus 
between the alleged discrimination and the physical concrete structure, the studio. 
Although studios are not explicitly referenced in the ADA text the Eleventh Circuit found 
that a t.v. studio was included in the phrase "... theatres and other places of 

In Access Now, Inc. v. Southwest Airlines, Inc, 227 F. Supp2d 1312 (S.D. Fla. 2002), Judge 
Seitz granted Southwest Airlines' Motion to Dismiss plaintiffs Title III ADA claim. The 
basis of this dismissal was the lack of a nexus between the claims of discrimination and a 
physical structure. The Plaintiffs here were arguing that Southwest Airlines' website 
( was violative of Title III in that it was not equipped to handle "screen 


reader" software and other computer assist software available to the visually impaired. In 
holding that this website did not meet the definition of "place of public accommodation", 
The Court first noted that "websites" were not explicidy enumerated in § 12181(7) A-L of 
the ADA. Further, the Court pointed out that the plaintiffs interaction with the website did 
not lead to a physical interaction with a structure like a travel agent office or airport. In other 
words, the intangible barrier would remain intangible for these plaintiffs. 

For purposes of the matter at hand, the USOC and USATF are sponsoring the 2008 
United States Track and Field Olympic Trials at Hayward Field on the campus of the 
University of Oregon. Hayward field is a 17,500 seat track and field stadium. It has been 
referred to as the "centerpiece" of track and field competition in the United States. This 
Olympic event is one of many instances where the Defendants either "lease" or "operate" a 
stadium. USADA acts as the anti-doping agent for both the USOC and USATF at these 
events and will do the same at the Olympic Trials. USADA will also be utilizing this place of 
public accommodation to carry out its anti-doping duties on behalf of the USOC and 
USATF. The fact that these entities are only controlling these premises for a limited amount 
of time still makes them subject to the ADA. Disabled Rights Action Committee v. Las Vegas 
Events, Inc., 375 F. 3d 861 (9 th Or. 2004). Clearly, Hayward Field is a stadium. These venues 
are expressly included in the twelve enumerated "places of public accommodation." 42 USC 
§ 12181(7) (c) 

The issue of a "place of public accommodation" was discussed, at some length, by 
the Supreme Court in PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879 (2001). In 
Martin, a golfer who was afflicted with a disability known as Klippel-Trenaunay- Weber 
Syndrome, was denied a waiver to use a golf cart in the last stage of the PGA's qualifying 
school ("Q-School"). The Martin Court found that the PGA's failure to make this 


accommodation amounted to a violation of the ADA. The PGA argued, in part, that the 
ADA should not apply to the PGA since "... the play areas of its tour competitions do not 
constitute places of 'public accommodation' within the scope of that Title." Martin, 532 U.S. 
661, 121 S. Ct. 1879 (2001). The Court noted that "golf courses" were expressly contained 
as places of public accommodation. 42 USC 12181(7) (L) The PGA argued, however, that 
even though "golf courses" were explicitly mentioned in the ADA statute they should not be 
considered places of public accommodation since their events were not open to the public 
but rather only PGA certified and qualified professionals who played "beyond the ropes". 
The District Court in Martin rejected this position as attempting to "create private enclaves 
within the facility. . .and thus relegate the ADA to hop-scotch areas." Martin v. PGA, Inc., 
984 F. Supp. 1320, 1326-1327 (D.Or.1998). The PGA made this same argument to the 9 th 
Circuit. That Court also rejected that position noting that "... as with a private university 
the fact that users of a facility are highly selected does not mean that the facility cannot be a 
public accommodation." Martin, 204 F. 3d 994, 998. 

Here, as in Martin, we have a venue that is expressly designated by the ADA as a 
place of public accommodation. Specifically, in 42 USC § 12181(7) C, "stadiums" are 
included in the definition of places of public accommodation. In addition to this precise 
designation the ADA text also refers indirecdy to track and field venues. For instance, the 
ADA includes "other places of exhibition or entertainment and other places of exercise or 
recreation." 42 USC § 12181(C) and (L) respectively. 

The "nexus" test set out in Rendon and Access Now is also met by Mr. Gatlin. Here, 
the Title III claim arises from a screening process that excludes ADD athletes. This 
discrimination is directly related to their participation in track meets. These meets occur in 
stadiums and are sponsored and/ or sanctioned by Defendants USATF and IAAF and in the 


case of Olympic trials are also sponsored by Defendants USOC. These "stadiums" are the 

concrete structures mentioned in both Rendon and Access Now so as to confirm these places 

as "public accommodations" as intended by the ADA. 

Defendants USOC, USATF, IAAF and USADA (who plaintiffs contend are always 

acting as the anti-doping agents for USOC, IAAF and USATF) are clearly entities that 

operate "places of accommodation" and therefore meet the operative definition for ADA 


(c) A retro-active therapeutic use exemption or "TUE" is a reasonable 

modification /accommodation under the facts of this case and does 
not fundamentally alter the nature of track and field 

The ADA definition of discrimination includes: a failure to make reasonable 

modifications in policies, practices, or procedures, when such modifications are necessary to 

afford such goods, services, facilities, privileges, advantages, or accommodations to 

individuals with disabilities, unless the entity can demonstrate that making such 

modifications would fundamentally alter the nature of such goods, services, facilities, 

privileges, advantages, or accommodations. 42 USC 12182(b) (2) (A) (ii) (Emphasis Added). 

The Plaintiff has the burden of proving that a modification was requested and that 

the requested modification is reasonable. The Plaintiff meets this burden by introducing 

evidence that the requested modification is reasonable in the general sense, that is, 

reasonable in the run of cases. If the Plaintiff meets this burden the Defendant must make 

the modification unless Defendant pleads and meets its burden of proving that the requested 

modification would fundamentally alter the nature of the public accommodation. Staron v. 

McDonald's, 51 F.3d 353 (2 nd Cir 1995). 

In Matthews v. NCAA, 179 F. Supp.2d 1209 (E.D. Wash. 2001), the District Court 

for the Eastern District of Washington considered Plaintiffs Motion for Temporary 


Restraining Order and a later filed Motion Preliminary Injunction pursuant to a Title III 
claim. Plaintiff in Matthews was a college football player with a learning disability. He argued 
that the NCAA was screening him, in violation of the ADA, by refusing to permit a waiver 
of its 75/25 academic rule. This rule required that NCAA athletes complete 75% of their 
course work during the regular school term as opposed to special winter or summer sessions. 
Matthews argued that a blanket waiver should be granted and the failure to do so would 
amount to discrimination against him based on his learning disability. The Court in Matthews 
spent a good portion of its opinion analyzing the reasonableness of the requested 
modification. Matthews, 179 F. Supp 2d 1209 at 1214. On this issue the Court noted that this 
waiver had been granted once before to the Plaintiff and once to another athlete, that the 
75/25 rule was relatively new and that the goal of fostering good academic performance did 
not seem frustrated by this waiver . The Court found that the Plaintiffs academic success 
on the courses he did complete seem to reassure the NCAA that their overall goal of 
academic success was being met by this athlete. The District Court in Matthews did grant the 
Motion for Temporary Restraining Order. Matthews, 179 F. Supp2d 1209, at 1226. 

The Bingham decision also spoke directly to the issue of reasonableness of the 
modification or waiver. Bingham, 24 F. Supp 2d 1 1 10 at 1 1 16. Again, in Bingham, an ADD 
student athlete was seeking a waiver from a county sports association rule. The rule 
prohibited high school players playing more than 8 semesters. Mr. Bingham had been held 
back in the 10 th grade for his ADD and wanted to play on the football team his senior year. 
This would have been his 9 th semester. In analyzing the reasonableness of the modification, 
that Court noted that waivers allowing older students to play football had been granted on 
previous occasions and allowing this 5 th year senior with ADD would not frustrate the 
purposes of the rule. The Court pointed out that the purpose of the rule was to prevent 


unfair advantage by allowing older, bigger and more experienced players on the team for a 
5 th year. Bingham was the same age as most of his teammates and was not more athletically 
experienced than the average player since his actual playing time had been low. The Bingham 
Court also pointed out that ADD is a condition that is beyond the athlete's control and this 
fact should favor accommodation. The Court found that Mr. Bingham being allowed a 
waiver would not frustrate the basis of the rule. 

Justin's request for a waiver was submitted to the 2001 USADA Review Board 
immediately following the positive Adderall® test. This is when he submitted his medical 
records and other evidence confirming his disability and medical necessity. The Review 
Board summarily denied the request and recommended that Justin be prosecuted. Justin's 
request for a waiver then and is now, reasonable. like the Bingham and Matthews requests, 
Justin's request for a retroactive waiver immediately following his 2001 positive drug test 
should have been permitted. The Defendants all recognized the waiver process and had 
explicit procedures for granting "TUE'"s. These TUE's were routinely granted prior to 
competition. Further, their policy of deterring cheating is not frustrated so long as they only 
punish those persons who cheat. It is clear that even the AAA Panel did not feel that Justin 
was a cheater. 

In fact the AAA held that if the purpose of anti-doping policies is to stop athletes 
from cheating, then a determination that an athlete is not should be significant. On top of 
this finding, if an entity learns that the same athlete was suffering from and treating his 
disability and that this gave rise to the positive test and the entity still refused to 
accommodate, the ADA is violated. In a case like this one, the ADA is meant to force such 
an accommodation. 


Perhaps, the most convincing evidence that a modification is reasonable and does 
not frustrate the Defendants policies, is the 22 page dissenting opinion from an arbitrator 
sitting in judgment of this Athlete and these Defendants. (See 2007 American Arbitration 
Association for the Dissenting Opinion authored by Chris Campbell attached as Exhibit J) 

Another factor in accessing the reasonableness of the modification in this particular 
case is the disability. Here, we have an athlete that suffers from ADD. No party contests 
this fact. Further, it is also undisputed that at the time of the 2001 Adderall® violation none 
of the Defendants had any "prohibition list" that included a reference to Adderall® or any 
other ADD medications. None of the Defendants, at that time, had a process that alerted 
these particular ADD athletes to the requirement that their medication (most of whom had 
taken since elementary school and to whom this medicine had become part of their daily 
routine) could ban them for 2 years and later serve to ban them for life. 
Then consider what the Defendants did following Justin's Adderall® sanction. They 
changed their rules making them more explicit now pointing out that ADD medications 
were on the prohibited list and required a "TUE". The only guidance given prior to this was 
to stop your medicines before competition. Is it reasonable to expect an athlete suffering 
from ADD to know more about the anti-doping policies than the entities promulgating 
them? This again is the point that a reasonable agency modifies its procedures to 
accommodate a disability. Here, the ADA is forced to pick up where the Defendants have 
fallen short. 

Following a positive finding, the USADA Review Board was vested with the 
authority to consider Justin's medical condition and then to decide whether or not to 
prosecute Justin for this offense. The Review Board met after examining all of Justin's 
medical records and after receiving professional opinions that confirmed Justin's diagnosis, 


they decided to move forward with the doping offense. The discrimination occurred at this 
point in the process but the impact of this discrimination would not have full effect until 


If the Review Board had decided to modify or accommodate Justin by allowing for a 
retro-active TUE then no violation of the ADA would have occurred. The fact that an 
exemption would have been granted had the same information been provided before the 
testing seems only to unfair punish a class of persons for exhibiting symptoms of their 
disability, inattentiveness. 

If, however, Justin had been taking most any other medicine then this same analysis 
would not apply. For instance, asthma medication requires a TUE since one of its 
ingredients is on the prohibited list. Assuming that an asthma stricken athlete failed to file a 
TUE (assuming no authority is requiring it) and then, following a positive drug test, he 
claims a retro active exemption, the asthmatic athlete's argument is much less compelling 
since the nature of their illness, respiratory insufficiency, does not cause inattentiveness. 

Plaintiff submits that these specific references to ADD are not accidental. USADA's 
decision to expressly reference "ADD MEDICATIONS" was an implicit admission that 
those suffering from this disease should be accommodated. (See Exhibit E) This recognition 
also serves to justify a retroactive exemption and makes such an accommodation reasonable 
under the specific facts of this case. 

A reasonable accommodation for an athlete who was sanctioned for failing to 
comply with a policy that would have been physically challenging for him to even notice 
until the 2005 changes is a retroactive exemption. 

The United States Supreme Court in Martin v. PGA closes its opinion affirming a 
modification for an ADA plaintiff with the following: 


"Congress intended that an entity like the PGA not only give individualized attention to a 
handful of requests for a modification or waiver of a rule to allow them access to the 
competition, but also carefully weigh the purpose, as weU as the letter, of the rule before 
determining that no accommodation would be tolerable. 532 U.S. 661 at 691, 121 S.Ct. 1879 

at 1898. 

Plaintiff would submit that the Defendants here have not carefully weighed the 

purpose, letter or spirit of its policies in light of Justin's disability. The Defendants have 

simply blindly enforced their policies as they were written in 2001. 

The reasonableness of this accommodation must be viewed considering the effects 

of the disability on Justin. Eugene R. Hershorin, M.D. ("Dr. Hershorin") is the current 

Chief of General Pediatric Division at the University of Miami Medical Center. Dr. 

Hershorin is Board Certified in Pediatrics with a boarded subspecialty in Developmental and 

Behavioral Pediatrics as well as a mini-fellowship graduate in psychotropic pharmacology 

from the Neuroscience Education Institute. 

As part of his work with this matter, Dr. Hershorin has reviewed the USADA 
"TUE" policies in place in 2001 compared to the form used since 2005. Dr. Hershorin has 
testified that, without an explicit directive, the "TUE" procedures existing in 2001, would 
most likely not have provided Justin notice any need to have an exemption. (See Affidavit of 
Eugene Hershorin, M.D. attached as Exhibit K) 

Dr. Hershorin has also reviewed the 2005 USADA document titled "TUE 
evaluating this 2005 TUE form, Dr. Hershorin testified that a form of this type would most 
likely assist a person with ADD in appreciating the severity and necessity of complying with 
the TUE procedures. (See Exhibit K) 

Dr. Hershorin, at the Plaintiffs request, conducted an exhaustive search and was not 
able to find any medical support for the proposition that Adderall® can in some manner 
enhance the performance of any athletes much less one competing in a foot race. 


The argument that Adderall® will provide an unfair advantage to any runner is not 
supported by the medical literature. (See Exhibit K) Hence, any suggestion that a waiver 
would fundamentally alter the nature of track and field is unsupportable in the medical and 
scientific communities. 

(2) Irreparable injury will be suffered in the absence of the requested relief 
and there is no adequate legal remedy. 

Preliminary injunctive relief derives from the necessity to restrain or compel conduct 

in those extraordinary situations where irreparable injury might result from delay or inaction. 

United Bonding Ins. Co. v. Stein, 410 F. 2d 483, 486-487 (3 rd Or. 1969). If this injunction is 

not granted the Plaintiff will not be eligible to participate in the 2008 Olympic Games in 

Beijing, China. These Games are scheduled to begin on August 8, 2008. 

Under the most recent arbitration decision that was rendered Friday June 6, 2008, Justin will 

not be eligible to compete until July 25, 2010. If however, this Court were to act and order a 

retro-active therapeutic use exemption it would nullify the 2001 sanction and in turn make 

the 2007 sanction punishable by a maximum of two years. Justin has served 2 years and 10 

months (one year prior to reinstatement from the Adderall® violation and nearly two years 

since 2006 positive test result). After accounting credit to Justin for the amount of time 

already spent ineligible, the two year sanction would have been served and Justin should be 

immediately reinstated to an eligible status. (See Exhibit B) 

Clearly, in the absence of immediate Court action, Justin will not be allowed to 

qualify for the 2008 Summer Olympic Games. 

(3) Threatening Injury to Movant Outweighs Whatever Damage The 
Proposed Injunction May Cause the Opposing Party. 

Not being able to defend your Gold Medal at the Olympic Games is injury without 
an adequate remedy at law. On the other hand, if granted, this injunction would arguably 


cause the Defendants to revisit all such cases where retro-active TUE's under these facts 
should be provided. These Defendants could assert that their hard line policy on doping 
offenses may be undermined by such an injunction. This interest, however, is outweighed 
by the more important purpose served by the ADA, ending discrimination based upon 
disability. Additionally, this decision will only have a very limited application since the facts 
of this case are unusual the applicable rules governing TUE's and ADD have been modified. 
(See Arbitration Reference to Unusual Facts). Clearly, the threatened life altering injury to 
Mr. Gatlin outweighs any potential harm to Defendants. 

(4) If Issued the Injunction Would Not Be Adverse to Public Interest 
As Congress noted in its comments following the passage of the ADA, it enacted the 
ADA to remedy widespread discrimination against disabled individuals. In studying the 
need for such legislation, Congress found that ". . . historically, society had tended to isolate 
and segregate individuals with disabilities and despite some improvements such forms of 
discrimination against individuals continue to be a serious and pervasive social problem." 42 
USC § 12101(a) (2). Congress also noted that many forms of discrimination include 
"outright intentional exclusion" as well as the "failure to make modifications to existing 
facilities and practices." § 12105(a) 5. Frankly, the Defendants have been slow to evolve in 
the post ADA era and have, so far, resisted such progression by claiming exclusive 
jurisdiction over the matter, without any legal support for such a claim. The public will most 
always be served greater by an order prohibiting discrimination based upon disability. 

To establish a violation of the Rehabilitation Act, Plaintiff is required to prove the 
following: "(1) that he has a disability; (2) that he is otherwise qualified for the employment 
or benefit in question; and (3) that he was excluded from the employment or benefit due to 


discrimination solely on the basis of the disability." Doe v. Univ. ofMd. Med. Sys. Corp., 50 F. 
3d 1261, 1264-65 (4 th Ck. 1995). 

An individual is considered disabled under the Rehabilitation Act if he "(i) has a physical or 
mental impairment which substantially limits one or more of such person's major life 
activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an 


It is also generally held that due to the similarities in the language of the ADA and the RA, 

the two are generally construed to impose the same requirements. Baird p. Rose, 192 F. 3d 

462, 468 (4 th Or. 1999). 

Plaintiffs would assert his arguments set out above for the ADA claim be adopted and 

incorporated for arguments under the Rehabilitation Act. 

Wherefore Plaintiff respectfully requests that this court enter an order requiring 
USADA to issue a retro-active therapeutic use exemption for Mr. Gatlin's 2001 Adderall® 
offense. Further, Plaintiff respectfully requests that this Court consider this matter on an 
expedited basis considering that the Olympic Track and Field Trials are to be conducted on 
June 27, 2008. 

Joseph A. Zarzaur, Jr. 
Attorney for Justin Gatlin 
Zarzaur Law, P.A. 
Post Office Box 12305 
Pensacola, Florida 32591 
Florida Bar #96-806 
850-444-9299 p 
866-588-1493 f